This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:“The National Peace and Reconciliation Commission that is established in terms of ...
This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:
“The National Peace and Reconciliation Commission that is established in terms of section 251 of the Constitution shall have a tenure of life of ten (10) years deemed to have commenced on the 5th of January 2018 with the gazetting as law of the National Peace and Reconciliation Act [Chapter 10:32].”
Aggrieved by the order, the appellants (Minister of Justice, Legal and Parliamentary Affairs, President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) have appealed to this court for relief.
BACKGROUND FACTS
The first respondent filed an application for a declaratory order on the 8th of October 2018, before the court a quo, in terms of section 85(1)(a) of the Constitution of Zimbabwe, 2013. The first respondent grounded her application on an alleged violation of section 56(1) of the Constitution of Zimbabwe 2013. She alleged that her fundamental right to equal protection of the law had been violated by the conduct of the appellants who had failed to enact the National Peace and Reconciliation Act (NPRC Act) in time and thus curtailed the life of the Commission by five years.
As a result of the alleged breach, she sought an order, that, it be declared that the second respondent's life tenure of ten years be deemed to have commenced from the 5th of January 2018 when the National Peace and Reconciliation Act (NPRC Act) was promulgated into law.
In the application, the first respondent's founding affidavit was divided into three parts:
(i) The first part related to the history and formation of the second respondent. The first respondent averred that the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution') introduced a number of key and revolutionary changes, chief amongst them being the creation of several Commissions. It was the first respondent's argument, that, the second respondent was one of the Commissions that was created. It was to operate for not more than ten years and had the mandate, in the main, of investigating human rights violations that were alleged to have occurred in 2008 in Zimbabwe.
The first respondent further averred, that, the Government of Zimbabwe had unilaterally amended section 251 of the Constitution by failing to ensure that the second respondent was established as soon as possible after the coming into operation of the Constitution thereby resulting in the Commission only being established after the National Peace and Reconciliation Act (NPRC Act) was enacted into law on the 5th of January 2018.
This was five (5) years after the coming into operation of the Constitution.
It was the first respondent's contention, that, this resulted in the second respondent having an existence of only five (5) years, that is, to August 2023. It was also the first respondent's averment that the failure by the Government of Zimbabwe to ensure that the effective date of the establishment of the second respondent, immediately after the coming into effect of the Constitution, amounted to a breach of her fundamental right to equal protection of the law as enshrined in the Constitution under section 56.
(ii) The second part of the founding affidavit dealt with the issue of whether or not the first respondent had locus standi to make the application and the legal basis upon which the application was before the court a quo.
The first respondent averred, that, she was a national executive member of the Movement for Democratic Change (MDC) Alliance for Mashonaland West. She further averred that she was making the application in terms of section 85(1)(a) of the Constitution, acting in her own interest, to ensure peace and reconciliation in Zimbabwe. She further alleged, that, her rights, in terms of section 56(1) of the Constitution, had been violated. She thus alleged that she had the requisite interest in the matter to bring the application in terms of section 85(1)(a) of the Constitution.
(iii) The last part of the founding affidavit dealt with an alleged ordeal that the first respondent and her family suffered in the hands of State security agents. She alleged that after the 2008 harmonized election, violence erupted in Zimbabwe and left many (including the first respondent and her family) displaced or dead. As a result of this violence, the first respondent and her husband allegedly fled from their home in Mashonaland West to Harare and stayed at Harvest House and at other MDC Alliance activists homes. The first respondent further alleged, that, she and her husband and other MDC activists were taken to Braeside Police Station and were detained for fifty-five (55) days. It was in the hands of the said police officers that the first respondent, her husband, and other activists were subjected to torture and abuse.
The first respondent further alleged, that, they were subsequently taken to Ahmed House where they were charged with terrorism, sabotage, and insurgence. The first respondent, and others, were taken to Harare Magistrates Court where they were remanded in custody. It was also alleged that the first respondent, her husband, and other activists were released after one Jestina Mukoko successfully filed an application to the Constitutional Court and the Court ordered that they be released as their original arrest was unlawful.
It was on this basis that the first respondent sought a declaratory order that the second respondent has life tenure with effect from 5 January 2018 to 5 January 2028 so that it could look into the alleged atrocities alleged in the founding affidavit.
Initially, the appellants had only opposed the application based on a preliminary objection to the application without addressing the merits of the matter. The objection was to the effect that the declaratory order sought by the first respondent was incompetent at law as she sought to amend the Constitution through a court order.
The court a quo however directed the appellants to file an opposing affidavit on the merits.
In opposing the application, the appellants denied the averments made by the first respondent in her founding affidavit with regards to the establishment of the second respondent. Further, it was denied that the appellants amended section 251 of the Constitution as the second respondent was established and was in existence from the effective date when the Constitution was promulgated notwithstanding the absence of the National Peace and Reconciliation Act (NPRC Act).
In dealing with the application, the court a quo dismissed the appellants preliminary objection.
On the merits, the court invoked various techniques of statutory interpretation and found, that, an interpretation of section 251(1) of the Constitution showed that reference to ten (10) years was in relation to the life of the second respondent after the effective date and not the period within which it had to be established. With that, the court held that the second respondent ought to have been established immediately after, or as soon as practicable, after the effective date.
As a result of this interpretation, the court found that the first respondent was entitled to the declaratory order sought and granted the order that I have already set out above.
SUBMISSIONS BEFORE THIS COURT
Counsel for the appellants motivated the appeal, in the main, on the basis, that, the court a quo erred in granting the declaratory order as it had the effect of amending section 251(1) of the Constitution.
Before the first respondent replied to the submissions by counsel for the appellants, the Court directed counsel for the first respondent to address it on two issues that were not apparent from the judgment made by the court a quo:
(i) The first issue related to the manner in which the first respondent's right to equal protection of the law was violated.
(ii) Secondly, whether the court a quo made a determination, that such right was indeed violated or was in danger of being violated.
Counsel for the first respondent submitted, that, the first respondent made the application in terms of section 85(1)(a) of the Constitution on the basis that her fundamental right, in terms of section 56(1), had been violated. He further submitted, that, in making the application, the first respondent's right also emanated from section 324 of the Constitution, and, as such, the right had to be protected in terms of section 56(1).
He however conceded, that, the court a quo did not make a finding that the fundamental right had been violated.
He submitted that since the court had granted the declaratur sought, it could be assumed that the court had found that the first respondent's rights had been or were likely to be violated.
It was also his submission, that, once the court found that the appellant had acted unlawfully, then, it was incumbent upon the court to grant the declaratur as the court could not ignore a Constitutional invalidity in terms of section 324 of the Constitution.
Counsel for the first respondent further argued, that, the argument by the appellants, that the second respondent came into effect after the promulgation of the Constitution in 2013 was devoid of merit as such argument meant that the life period of the National Peace and Reconciliation Commission was curtailed by five (5) years.
ANALYSIS
It appears to me from the submissions made, that, the determination of a single issue will potentially have the effect of resolving the matter.
The issue for determination by this Court is whether or not the court a quo erred in granting the declaratory order sought by the first respondent without first finding whether or not the first respondent's rights, in terms of section 56(1) of the Constitution, had been violated.
It is quite apparent from the founding affidavit by the first respondent that she approached the court in terms of section 85(1) of the Constitution seeking a declaratory order on the basis that her constitutional right enshrined in section 56(1) had been violated.
At paragraph 26 of the founding affidavit, the applicant stated thus:
“I therefore contend that my Constitutional right to equal protection of the law, as protected by section 56(1) of the Constitution, has been breached by appellant's actions in failing to ensure that the Commission was in existence and would operate effectively for the ten (10) years envisaged in section 251 of the Constitution.”
At paragraph 78, the applicant again reiterates that she is bringing the application in terms of section 85(1)(a) of the Constitution on the basis that her rights under section 56(1) of the Constitution have been violated.
It is therefore necessary, at the outset, to establish whether or not the applicant approached the court correctly in terms of section 85(1)(a) and thereafter assess whether or not the court found that her rights had been violated.
Section 85(1) of the Constitution provides:
“Any of the following persons, namely:
(a) Any person acting in their own interests;
(b)…,.
(c)…,.
(d)…,.
(e)…,.
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.
A proper interpretation of the above provision is that once a person approaches a court, on the basis of section 85(1)(a) of the Constitution, the court must make a determination on the following issues:
(i) That the person approaching the court has an interest in the matter; and
(ii) That the person is alleging that a fundamental right in Chapter 4 has been, is being, or is likely to be violated in respect to her.
See Meda v Sibanda & Anor 2016 (2) ZLR 232 (CC)…,.
A reading of the judgment of the court a quo shows that the court did not make a determination on the above issues.
The court a quo clearly did not consider that the case before it was a section 85(1) application which required that the first respondent satisfies the court that she was properly before it and that she had the requisite interest.
This point was emphasized in Loveness Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & 2 Ors CC12-15 where MALABA DCJ…, stated…, that:
“The person claiming the right to approach the court must show, on the facts, that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.”
On the basis of the above, I find, with respect, that the court a quo grossly misdirected itself in failing to consider the cause of action of the case that was before it.
The full judgment of the court a quo makes no reference at all to the basis upon which the application was made. There is no reference to the application being a section 85(1) application.
Instead, the court a quo launched into the rules of statutory interpretation without applying its mind to the case before it or making any specific finding of whether or not the applicant before it had the requisite interest to launch the application.
It is of importance to note, that, in her founding affidavit, the first respondent averred that her legal interest in bringing the application was founded on the basis of a violation of a fundamental right under section 56(1) of the Constitution.
It is trite that the interest that an applicant must allege in section 85 of the Constitution is a legal interest in the matter not just that of a busy body who wants to poke their nose into any matter that does not concern them.
I note, in passing, that, the court made no finding whether or not the first respondent was properly before it.
Turning to the crux of the matter before me: it is my view, that, the matter turns on a determination of whether or not the court made a finding that the first respondent's rights under section 56(1) had been violated.
It is trite, that, where a litigant approaches the court under section 85(1) of the Constitution, alleging that her rights have been violated, it is incumbent upon the court to make a determination on this point. In other words, a section 85(1) application requires the applicant to allege and prove an infringement of his or her fundamental right.
The making of such a determination is what triggers the remedy that the court will eventually make in order to grant relief to the applicant. In other words, a declaratory order made in terms of section 85(1) of the Constitution cannot be made in the air. It must be based upon a finding that the applicant's rights had been or were likely to be breached.
Section 56 of the Constitution, upon which the first respondent founded her claim, reads as follows:
“56 Equality and non-discrimination
(1) All persons are equal before the law and have the right to equal protection and benefit of the law.
(2) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.
(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.
(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if -
(a) They are subjected, directly or indirectly, to a condition, restriction, or disability to which other people are not subjected; or
(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.
(5) Discrimination, on any of the grounds listed in subsection (3), is unfair, unless, it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.
(6) The State must take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination; and —
(a) Such measures must be taken to redress circumstances of genuine need;
(b) No such measure is to be regarded as unfair for the purposes of subsection (3).”
Section 56 of the Constitution is a non-discriminatory provision. It guarantees equality before the law. In other words, for a person to prove a violation under this provision, he or she must not only prove unequal or different treatment but also that others in a similar position were afforded such protection.
In the case of Samuel Sipepa Moyo v Minister of Local Government, Rural & Urban Development & 2 Ors CC06-16, the court had reason to interpret the meaning and application of this provision. At p8 of the judgment, the court stated:
“In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection; that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same or similar position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”
Applying the above to the facts of this case, I take the view, that, it was incumbent upon the first respondent to satisfy the court a quo that her rights had been or were in danger of being violated and that others in a similar position had been treated differently. The court a quo was thus obliged to interrogate the evidence presented a quo and make a specific finding that her rights, as enshrined in section 56(1), had been or were in danger of being violated.
It was only after making such a finding, that the court could make the order sought by the applicant before it on the basis that it was granting relief in terms of section 85 of the Constitution.
Firstly, the first respondent, in her founding affidavit, did not aver that she had suffered from unequal treatment or differentiation. She did not allege that she was denied protection whilst others in a similar position as her had been afforded such protection.
Secondly, a reading of the judgment of the court a quo indicates, that, no finding of this important consideration was made.
This point was conceded by counsel for the first respondent.
Indeed, he would have been hard pressed to argue otherwise as, nowhere in the judgment, does the court refer either to section 85(1) or to section 56(1) of the Constitution upon which the application is founded. A finding on this point would have opened the door for the relief sought by the first respondent.
The court a quo thus erred and misdirected itself in this respect.
I was not persuaded by the argument by counsel for the first respondent that the court should find, that, in granting the declaratur it must have found that that there was a violation of section 56(1) of the Constitution as otherwise it would not have granted the relief sought.
However, it is my view that the matter cannot be resolved in this way.
A reading of the judgment shows that the Court was clearly not concerned with this issue. Its only concern was interpreting section 251 of the Constitution.
It was also not apparent what law was applied to make the declaratory order. A declaratory order is generally made in terms of section 14 of the High Court Act [Chapter 7:06].
The court a quo did not interrogate the requirements for the grant of a declaratory order in this case.
Whatever the basis of the relief granted, it remained embedded in the mind of the court and was not reduced to writing.
